“Play stupid games, get stupid prizes”.<\/p>\n
It’s a mantra my first carry permit instructor, the late Joel Rosenberg, used to drill into his students’ heads. \u00a0The point? \u00a0The best case of self-defense is the one you don’t need to state in front of a court. \u00a0Don’t put on your legal gun and go to roughneck bars, or hang out where stupidity is likely to break out. \u00a0 If someone provokes you, walk away – using extreme measures. \u00a0“When you’re armed”, Joel used to say, “it’s incumbent on you to be the biggest pussy in the bar”.<\/p>\n
And the stupidity doesn’t start when the potential violence does. \u00a0Oh, no.<\/p>\n
One of the things police and prosecutors would do, if you got into a lethal-force self-defense incident, was pore over everything they can find about your past, to find some way in which they can convince a jury that it wasn’t\u00a0really\u00a0<\/em>self-defense.<\/p>\n Remember – under Minnesota law, there are four factors that must be upheld when you claim self-defense using lethal force:<\/p>\n When you claim “self defense”, you must meet\u00a0all four\u00a0<\/em>of the criteria above. \u00a0That means all four; if you miss one of them – or if a jury can be convinced you missed one of them, rightly or wrongly – you’re in big trouble.<\/p>\n Big Trouble<\/strong>: \u00a0Allen Scarsella was convicted of “Riot”, First Degree Assault and some counts of Second Degree Assault <\/a>for an episode that happened at the protests outside the Minneapolis Fourth Precinct in November 2015.<\/p>\n The jury deliberated for seven hours following two weeks of testimony from nearly two dozen witnesses \u2014 including surprise testimony from Scarsella and a co-defendant \u2014 before returning guilty verdicts on all counts.<\/p>\n<\/blockquote>\n So – how did Scarsella get convicted?<\/p>\n Let’s go through those four elements.<\/p>\n Fear Of Death<\/strong>: \u00a0 Observers, and even some of the victims, testified that there was a chase, as at least seven protesters ran after Scarsella and his companions. \u00a0Was fear of death or great bodily harm reasonable? \u00a0We’d have to ask the jurors – but the law doesn’t require one to be a mind-reader.<\/p>\n \u00a0Mobs do stupid things. \u00a0Call this a definite maybe. \u00a0It would certainly be obtuse to rule it out just because you don’t like the defendant or his motivations; people who believe objectionable things have rights, too.<\/p>\n Convincing a jury of this sort of thing is why defense attorneys make the big bucks.<\/p>\n Duty To Retreat<\/strong>: \u00a0Well, no doubt there. \u00a0Scarsella and his friends certainly tried to get away. \u00a0 Call this a no-brainer for the defense.<\/p>\n Was Lethal Force Appropriate?<\/strong>: \u00a0Well, assuming it was reasonable to assume the threat was immediate and lethal, the shooting ended the threat. \u00a0As far as that goes, let’s call it a non-factor.<\/p>\n Not A Willing Participant<\/strong>: \u00a0Here’s the thing about jury trials (or so I’m told by my lawyer friends); a big part of the job is making sure the jury likes you, feels for you, identifies with you. \u00a0This becomes important when it comes to this criterion of self-defense in particular.<\/p>\n Going where a confrontation might happen might be considered “willing participation” – but in the Darren Evanovich shooting, where a Good Samaritan chased an armed robber into an alley, the prosecutor decided the evidence showed the Samaritan was not a willing participant<\/a>; he went looking for the purse, not a fight.<\/p>\n But while Scarsella may well have had second thoughts about\u00a0attending the protest long before the shooting started, the prosecutors also found some evidence that made him pretty \u00a0unsympathetic to the jury:<\/p>\n They watched several videos taken before and after the shooting, including ones of Scarsella making racist comments; and they viewed numerous texts where Scarsella described his intent to kill black people.<\/p>\n<\/blockquote>\n Now, could a good lawyer have gotten a jury to disregard this? \u00a0Maybe, maybe not. \u00a0 \u00a0Even racists have the right to defend their lives; self-defense isn’t a popularity contest.<\/p>\n But jury trials, to a great extent, are. \u00a0And the prosecution (according to sources familiar with the case) were able to create an impression with the jury that Scarsella went to the Fourth Precinct looking for a fight. \u00a0Which blew away his chance of calling himself an “unwilling participant”, and with it, his self-defense claim.<\/p>\n The obvious lesson – if you value the right to self-defense, and you believe things that a jury might find unsavory, then keep quiet about them, especially on social media, text messages and other searchable media.<\/p>\n And it’s not just racial ugliness. \u00a0If you’re a shooter, for crying out loud, don’t be jabbering on Facebook about how eager you are to turn your new shotgun on an intruder. \u00a0It’l make it harder for a zealous prosecutor to paint you as a slavering gun nut with an itchy trigger finger.<\/p>\n\n
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